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Whistleblower Protection & Whistleblower Disclosures

Whistleblower Protection & Whistleblower Disclosures. Rights and remedies of federal employees Under 5 U.S.C., Chapters 12 & 23. U.S. Office Of Special Counsel Shirine Moazed, Chief, Training and Outreach March 10, 2016.

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Whistleblower Protection & Whistleblower Disclosures

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  1. Whistleblower Protection & Whistleblower Disclosures Rights and remedies of federal employees Under 5 U.S.C., Chapters 12 & 23 U.S. Office Of Special Counsel Shirine Moazed, Chief, Training and Outreach March 10, 2016

  2. Office Of Special Counsel (OSC)5 U.S.C. §§ 1211-19; 5 C.F.R. Part 1800 Authorized to — • Investigate prohibited personnel practices and other activities prohibited by civil service law, rule, or regulation • Seek corrective action for victims of prohibited personnel practices • Seek disciplinary action against officials who commit prohibited personnel practices

  3. WPA/WPEA—Remedies • Remedies • Damages- primarily, placing employee back into position had retaliation not occurred • Compensatory damages [Applies to post-WPEA claims arising after 12/27/12 except for some HWE claims] • any other reasonable and foreseeable consequential damages, (attorneys’ fees, interest, reasonable expert witness fees, and costs)

  4. Office Of Special Counsel (OSC) 5 U.S.C. §§ 1211-19; 5 C.F.R. Part 1800 Authorized to — • Provide safe channel for whistleblower disclosures • Advise & enforce Hatch Act provisions on political activity by federal, state, and local government employees • Protect reemployment rights of federal employee military veterans and reservists under USERRA

  5. Responsibilities of Agency Officials5 U.S.C. § 2302(c) Agency heads, and officials with delegated personnel management authority, are responsible for — • Preventing prohibited personnel practices • Following and enforcing civil service laws, rules, and regulations • Ensuring that employees are informed of rights and remedies (in consultation with OSC)

  6. Prohibited Personnel Practices:Overview 13 Prohibited Personnel Practices Discrimination • Based on race, color, sex, etc., but note, marital status and political affiliation 5 U.S.C. § 2302(b)(1) • Based on conduct that does not adversely affect performance 5 U.S.C. § 2302(b)(10) • Political Activity 5 U.S.C. § 2302(b)(3) Hiring practices • Considering improper (political) job references 5 U.S.C. § 2302(b)(2) • Obstructing the right to compete 5 U.S.C. § 2302(b)(4) • Influencing withdrawal from competition 5 U.S.C. § 2302(b)(5) • Unauthorized preferences and advantages 5 U.S.C. § 2302(b)(6) • Nepotism 5 U.S.C. § 2302(b)(7) • Knowingly violating veterans’ preference 5 U.S.C. § 2302(b)(11) Retaliation • For Protected Disclosures 5 U.S.C. § 2302(b)(8) • For Protected Activity 5 U.S.C. § 2302(b)(9) Catch-all and Non-Disclosure Agreements (NDA). NDA’s, policies, or forms must include a statement stating that any agency restrictions on making disclosures do not impact employees’ whistleblower rights. 5 U.S.C. § 2302 (b)(13).

  7. Hiring Offenses Caveat: • While most hiring offenses require intent to deceive or manipulate, hiring or promoting in violation of a law, rule, or regulation implementing a merit system principle is also a PPP and does not require evidence of intent 5 U.S.C. § 2302(b)(12)

  8. Nondisclosure Agreements—New Whistleblower Protection Enhancement Act (WPEA) PPP 5 U.S.C. § 2302(b)(13) requires: • a statement clarifying that agency restrictions on disclosures are superseded by statutory whistleblower rights in any nondisclosure agreements, policies, or forms • Implementing or enforcing a nondisclosure agreement that fails to provide this required notification of whistleblower rights is prohibited • Existing nondisclosure agreements become enforceable when notice of superseding statutory rights is posted

  9. Retaliation5 U.S.C. §§ 2302(b)(8), (b)(9) Taking, failing to take, or threatening to take or fail to take personnel action for ― • Protected whistleblower disclosures • Protected activity

  10. Elements of Proof: Retaliation Claims5 U.S.C. §§ 1214(b)(4)(a)-(b), 1221(e) Must show — • Protected disclosure of information under • 5 U.S.C. § 2302(b)(8) or protected activity under 5 U.S.C. § 2302(b)(9) • Personnel action taken, not taken, or threatened • Actual or constructive knowledge of protected disclosure or protected activity • Protected disclosure or protected activity was contributing factor in personnel action

  11. Protected Whistleblower Disclosures5 U.S.C. §§ 2302(b)(8), 1213-ELEMENT No. 1 Disclosure Categories –Employee must “reasonably believe” he/she is disclosing: • Violation of any law, rule, or regulation • Gross mismanagement: substantial risk of significant impact on mission • Gross waste of funds: more than debatable expenditure • Abuse of authority • Substantial & specific danger to public health or safety • Censorship related to scientific research or analysis (scientific integrity)

  12. Is the Disclosure Protected?

  13. Is the Disclosure Protected?

  14. Is the Disclosure Protected?

  15. Is the Disclosure Protected?

  16. Protected Activity5 U.S.C. §§ 2302(b)(9), 1213-ELEMENT No. 1 Protected Activity • Exercise of appeal, complaint, or grievance rights • Testimony or other assistance to person exercising such rights • Cooperation with or disclosures to Special Counsel or Inspector General • Refusal to obey an order that would require violation of law

  17. Protected Whistleblower Disclosures (cont’d)5 U.S.C. §§ 2302(b)(8), 1213 • Generally protected when made to any person • Need not be accurate to be protected • Protected if employee reasonably believes that it is true — test is both objective and subjective

  18. Protected Whistleblower Disclosures (cont’d)5 U.S.C. §§ 2302(b)(8), 1213 • No requirement to go through chain of command • Whistleblower’s personal motivation does not negate reasonable belief • Employee or applicant protected if employer mistakenly believes he or she is a whistleblower

  19. Protected Whistleblower Disclosures - WPEA 12/27/20125 U.S.C. §§ 2302(b)(8), 1213 • Disclosure does not lose protection because: • disclosure made to person who participated in the wrongdoing; • disclosure revealed information that had previously been disclosed; • disclosure made while off duty; or • disclosure made during the employee's normal course of duties.

  20. Protected Whistleblower Disclosures (cont’d)5 U.S.C. §§ 2302(b)(8), 1213 Disclosure not protected (unless made to OSC or IG), where — • Prohibited by law, or • Required by Executive Order to be secret for national security or foreign affairs

  21. Protected Whistleblower Disclosures (cont’d)5 U.S.C. §§ 2302(b)(8), 1213 Department of Homeland Security v. MacLean—Supreme Court Decision (January 21, 2015) Robert J. MacLean worked as an air marshal for the Transportation Security Administration (TSA) in 2003. Mr. MacLean made a disclosure he reasonably believed would impact the publics’ safety.

  22. Protected Whistleblower Disclosures (cont’d)5 U.S.C. §§ 2302(b)(8), 1213 MacLean (cont.) The Court (seven-to-two) held that (1) the exemption in the WPA for disclosures “prohibited by law” does not apply to disclosures prohibited solely by TSA regulations, and (2) the TSA statute did not prohibit MacLean’s disclosure of alarming lapses in post-9/11 aviation security to a reporter MacLean’s effect: • Statute must bar the disclosure--regulations by themselves are not sufficient

  23. Retaliation-Elements 2 & 3 BACK TO THE ELEMENTS • Once it is established that the employee had a reasonable belief that they reported one of the six categories of protected whistleblower disclosuresor engaged in protected activity (element 1), must establish elements 2 & 3: 2. Personnel Action (examples-broader than adverse action) 3. Knowledge/Constructive Knowledge-

  24. Retaliation-Element 4 Element 4 — Contributing Factor Any factor which alone or in connection with others tends to affect in any way the outcome of the personnel action at issue Note-one type of protected activity must still meet significant factor test- 5 U.S.C. § 2302(b)(9)(A)(ii) (exercise of appeal ,complaint, or grievance right other than complaints remedying protected whistleblowing)

  25. Retaliation-Element 4 Contributing Factor Can be established by knowledge and timing alone Often established by circumstantial evidence

  26. Retaliation-Element 4 Contributing Factor Can be established by knowledge and timing alone Often established by circumstantial evidence • Disproportionate response • Poor explanation for action • Insufficient investigation, inconsistent reasons • Change in attitude: WB had no history of problems • Motive to retaliate

  27. Retaliation-Clear and Convincing Evidence (Agency Defense) • Agency must show — by clear and convincing evidence — that it would have taken same action absent protected whistleblower disclosure and/or protected activity • Factors: • Strength of evidence in support of personnel action • Existence & strength of motive to retaliate • Treatment of similar employees who did not engage in protected whistleblowing or protected activity

  28. Clear and Convincing Evidence(Agency Defense) • What is clear and convincing evidence? • Whitmore v. Dep’t of Labor, • Landmark ruling on agency burden of proof • Very favorable for whistleblowers on scope of discovery and scope of hearing

  29. Whistleblower DisclosuresSeparate from Retaliation Process for PPPs5 U.S.C. § 1213 The Office of Special Counsel provides a safe channel for whistleblower disclosures by federal employees, former federal employees, and applicants for federal employment

  30. Whistleblower Disclosures5 U.S.C. § 1213 Disclosure Categories • Violation of any law, rule, or regulation • Gross mismanagement: substantial risk of significant impact on mission • Gross waste of funds: more than debatable expenditure • Abuse of authority • Substantial & specific danger to public health & safety

  31. HOW THE OSC PROCESSESA DISCLOSURE OF WRONGDOING DISCLOSURE UNIT (DU): • Reviews all incoming complaints • Makes jurisdictional determination • Substantial Likelihood determination • If yes, OSC refers the disclosure to the appropriate agency head. • Agency investigation and report • OSC review for reasonableness • Report transmitted to the President and Congressional Committees. • Report to public file

  32. OSC Phone / email contacts Complaints Examining Unit: (202) 254-3670 (800) 872-9855 Disclosure Hotline: (202) 254-3640 (800) 572-2249 Hatch Act Unit: (800) 85-hatch (202) 254-3650 hatchact@osc.gov Website: osc.gov [complaint forms/e-file] OSC Speakers/2302(c) Certification Program/ Outreach Requests: (202) 254-3684 2302c@osc.gov

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